Shan Kai Weng v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 06 November 2003
• Neutral Citation: [2003] SGHC 274
• Docket Number: Criminal Revision No 13 of 2003 and Magistrate's Appeal No 144 of 2003
• Date: 06 November 2003
• Year: 2003
• Published date: 26 November 2003
• Plaintiff Counsel: Bhargavan Sujatha (Bhargavan & Co)
• Citation: [2003] SGHC 274
• Defendant Counsel: James E Lee (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Possession of controlled drug under s 8(a) of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed),Revision of proceedings,Principles,Sentencing,Whether sentence manifestly excessive,Criminal Procedure and Sentencing,Whether accused understood nature and consequences of plea,Whether accused admitted offence without qualification

1 This was a petition for criminal revision of a decision of a subordinate court, and an appeal against the sentence imposed. I dismissed the application for revision, but allowed the appeal against sentence and reduced the sentence imposed. I now give my reasons.

The undisputed facts

2 On 7 July 2003, the appellant was driving into Singapore at 2.30am when he was stopped by the police, and his vehicle searched at the Woodlands Checkpoint Arrival Car Inspection Pit. The police officers found a tablet inside a red wrapper at the driver’s seat near the dashboard. The appellant admitted to ownership of the tablet and was placed under arrest. His urine tested negative for drug consumption.

3 Upon analysis by the Health Sciences Authority, the tablet was found to contain nimetazepam, a Class C controlled drug listed in the first schedule to the Misuse of Drugs Act (Cap 185)(the “MDA”).

4 On 5 August 2003, the appellant appeared before the district judge in person and pleaded guilty to the following charge for unlawful possession of drugs:

You, Shan Kai Weng, M/27 years old, IC No S76111491, are charge [sic] that you, on or about the 7^th day of July 2003 at about 0230 hrs, at Woodlands Checkpoint Arrival Car Inspection Pit, Singapore, did have in your possession a controlled drug as specified in Class C of the First Schedule to the Misuse of Drugs Act (Chapter 185), to wit, one tablet marked “028” on one side and “5” on the other side which was analysed and found to contain nimetazepam, without authorization under the said Act or the Regulation made thereunder, and you have thereby committed an offence under Section 8(a) and punishable under Section 33 of the Misuse of Drugs Act (Chapter 185).

5 The Notes of Evidence for the relevant court proceedings state:

Charge read, explained and understood in English.

Punishment prescribed by law explained to Accused.

Accused pleads guilty.

Understands nature and consequences of plea.

Statement of Facts “A”.

Statement of Facts read.

Facts admitted without qualification.

Court: Guilty and convicted.

Antecedents: Nothing known.

Mitigation: I am pleading for a light sentence.

Court: Six months’ imprisonment.

The appellant’s case

6 The appellant did not deny possession of the tablet. However, he claimed before me that he did not know the nature of the tablet in his possession, believing it to be a sleeping pill. His version of events was as follows: –

7 Whilst playing volleyball at Sentosa in mid-May 2003, the appellant complained about having constant headaches from early May. An acquaintance, one “John”, told him that he had some tablets for headaches, which had helped him. John gave the appellant a tablet, which the appellant believed to be a sleeping pill. The appellant took the tablet. Since he did not have a headache at the time, he left the tablet in his car.

8 On 19 June 2003, the appellant had to undergo minor surgery to remove three of his wisdom teeth. He was given eight days medical leave after surgery. The dentist told him that his headaches could have been caused by his problems with his teeth. After the surgery, the appellant no longer experienced the headaches. Having no need of the tablet, he left it in his car and forgot about it until the police officers found it.

9 When stopped at the Woodlands checkpoint, the appellant’s immediate response to the investigating officers was that the tablet was a sleeping pill. Upon further questioning, he explained to them how he had come by the tablet; that he had believed all along that it was a sleeping pill, and that he only came to know it was a controlled drug when the officers told him so. In reply, the police officers told him that since they had found him with the drug, they would charge him for possession of the drug, regardless of whether he knew what it was.

10 The appellant was not represented by counsel when he appeared before the trial judge. At the time his plea was taken, he believed that there was nothing more he could add to its contents, as he had already stated his position to the police officers earlier. He thus pleaded guilty to the charge, and intimated that he knew the nature and consequences of his plea. As reflected in the Notes of Evidence, he also admitted to the Statement of Facts without qualification after it was read to him. The relevant portion of the Statement of Facts reads:

Upon checking the vehicle driver’s seat near the steering wheel dashboard, complainant recovered one tablet inside a red wrapper with the marking “5” believed to be a controlled drug. Accused was the driver of the vehicle and he admitted ownership to the one tablet. Accused was then placed under arrest for possession of controlled drugs.

11 The Statement of Facts went on to say that upon analysis, the tablet was found to contain nimetazepam, a class C controlled drug listed in the MDA. The appellant claimed that he believed that he had to admit to the Statement of Facts since it was true that he was found with the tablet. He was not aware of the presumption under s 18 of the MDA, which provides:

(1) Any person who is proved to have had in his possession or custody or under his control –

(a) anything containing a controlled drug;

……

shall, until the contrary is proved, be presumed to have had the drug in his possession.

(2) Any person who is proved or presumed to have had a controlled drug in his possession shall, until the contrary is proved, be presumed to have known the nature of that drug.

As such, he argued that he was unaware that he should qualify his plea by informing the court that he was unaware that the tablet was a controlled drug, so as to rebut the presumption that he knew the nature of the drug

12 The appellant also told the court that he was worried about the consequences should his employers find out about the case. He thought that if he pleaded guilty, he would simply be fined, and could “move on with his life”.

13 It was on this basis that the appellant petitioned for criminal revision. In the alternative, he appealed against the sentence of six months imprisonment as being manifestly excessive.

Petition for criminal revision

Principles of revision

14 The High Court’s revisionary powers are conferred by s 23 of the Supreme Court of Judicature Act (Cap 322)(the “SCJA”) and s 268 of the Criminal Procedure Code (Cap 68)(the “CPC”). It is trite law that these powers of revision are discretionary, and will be exercised sparingly: Mok Swee Kok v PP [1994] 3 SLR 140. It is not the purpose of criminal revision to become “a convenient form of ‘backdoor appeal’ against conviction for accused persons who had pleaded guilty to their charges”, as articulated in Teo Hee Heng v PP [2000] 3 SLR 168 at 172.

15 The test laid down by the courts is whether the failure to exercise revisionary powers will result in serious injustice being done. No precise definition of what constitutes serious injustice is possible – however, it must generally be shown that there was something palpably wrong in the decision by the court below, which strikes at its basis as an exercise of judicial power: see Ang Poh Chuan v PP [1996] 1 SLR 326 at 330, followed in Ngian Chin Boon v PP [1999] 1 SLR 119 and Balasubramanian Palaniappa Vaiyapuri v PP [2002] 1 SLR 314.

16 Whereas the function of the appellate court is to examine the evidence and come to an independent finding on each issue of fact, the revisionary court should confine itself to errors of law or procedure. It should deal with questions of evidence or finding of facts only in exceptional circumstances to prevent a miscarriage of justice: Sarjit Singh s/o Mehar Singh v PP [2002] 4 SLR 762 at 767.

17 Bearing these principles in mind, I turn to the petition at hand.

Validity of the plea of guilt

18 The appellant’s arguments that he did not realise the need to qualify his plea before the judge, and his belief that he would only be given a fine, essentially challenged the validity of his plea of guilt. The common law has evolved various procedural safeguards to ensure that a plea of guilt can safely form a basis for conviction. The test has been definitively laid down in Ganesun s/o Kannan v PP [1996] 3 SLR 560, and followed in Rajeevan Edakalavan v PP [1998] 1 SLR 815 and Koh Thian Huat v PP [2002] 3 SLR 28. As such, the following safeguards must be observed before a plea of guilt can be deemed valid and unequivocal. First, the court must ensure that it is the accused himself who wishes to plead guilty. As such, the accused should plead guilty by his own mouth, and not through his counsel. Second, the court must ascertain whether the accused understands the nature and consequences of his plea. Third, the court must establish that the accused intends to admit without qualification the offence alleged against him.

Pleading guilty by his own mouth

19 In my view, there was no dispute that the appellant pleaded guilty to the charge by his own mouth.

Understanding the nature and consequences of his plea

20 Clarifying what the second requirement of understanding the nature and consequences of one’s plea means, this court held in Balasubramanian that understanding the “nature” of the plea means that the accused must know exactly what he is being charged with. To understand the “consequences” of the plea, the accused must be aware of the punishment prescribed by the law so that he knows the possible sentence he will receive upon conviction.

21 The appellant argued that he failed to appreciate that possession of the drug with knowledge of it being a controlled drug was an important ingredient of the offence. Further, he did not understand the consequence of his plea, since he thought that he would be let off with a fine.

22 I found this argument unmeritorious. First, the appellant could not have been unaware that he was pleading guilty to a charge of possession of controlled drugs. This was...